20031223 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM - - COMMERCIAL CASE NO. 254 OF 2002 FATEHALI MOHAMEDALI KANANL .. :.................................... PLAINTIFF

VERSUS THE PERMANENT SECRETARY MINISTRY OF WORKS ... 1sr DEFENDANT THE ATTORNEY GENERAL. ...................................... 2N° DEFENDANT· ANGELO IH-oYELO MUNENl. ........ 1:I' . . . . . . . . . . . . . . . . . . . . . . . . . . 3Ro D-E _ FENDANT

RULING KIMARO,J. The Advocates in this suit were invited by this court to I . address the issue whether on :not the court has jurisdiction to adjudicate on this suit In the ·plaintiff's suit, it is basically averred -that 3~~ - defendant trespassed into a house_ .situated on plot No.2442/5 sea View llala District Dar~Es-salaam. The "invitation Was given by Hon. Judge Nsekela ·as he then was, before. he was uplifted to the court of Appeal. His promotion came at a time _'r'fhen he had not composed the ruling. That is·how I stepped into_ - the conduct_ of the case. The plaintiff is praying for; · "(aJ Recovery of vacant possession and/or eviction of the 3rd defendant from house on plot No.244215 sea View area, · I/ala District ~ oar es Sqlaam Region. _ (bJ Payment otspecific damages of TShs. 75,000,000I=. _rcJ Payment of general damages. (dJ Interest at the Bank's rate of the amount in (bJ and rcJ from the date due to the date of Judgment. . reJ Interest at the court.·s rate of the decretal amount from the date of Judgment to the date of full payment. 2 ;. .rfJ costs of this suit be paid bY the defendants. I • (gJ ·Any other relief(sJ as this Hon.· court may deem fit anq just to grant. n .. i, I The plaintiff avers that he is . a lawful owner of the house. A I • . title deed for the said plot is annexed to the plaint. The submissions by plaihtlff'S advocates . (MK

PARTNERS ADVOCATES) are that the suit they have filed is of a commercial nature because it is founded on a contract of sa'le between the ~-- plaintiff and the first defendant The plaintiff has not been _ handed the suit premises, and.'· the house is ·occupied by a I rd trespasser (3 defendant). According to the plaintiffs advocates, there is a breach of the contract tor sale, as well as loss of income. support was sought . . in Rule .2 (2) (a) (iii) of Government Notice No.141 of 1999, as well as section 3(1) of the Sale of Goods Ordinance, 1931 which defines ;a contract of sa·1e of goods as· - follows: "A contract of sale of-goods is a contract whereby the seller I • • •• transfers the property in, the goods to the buyer for a · money consideration call.ed the price. There may be a contract of sale between .o·ne part. owner and another." I Miss Seleh, Learned State Attorney for the 1st · and 2nd · defendants and Mr. Mundemba, . Learned Advocate for the 3rd · .. defendant submitted that The: commercial Division of the High court was established to deal W1ith cases deemed/considered to be of commercial "significance."· Mr. Mundemba -said the_ scope_ of· • • ·1 ' . . . . . . what constitutes a commercial case is itemized in (1) - (XIID of Rule _-- 3 2 of GN 141 of 1999. The essence of th·e classification is that Civil ·, commercial cases will entail busin~ss or a commercial

organisation or "persons" outside it. \ • • Mr. Mundemba's observation' is that even if.the court was to I accept that the defendants breac:hed a sal~ agreement of a residential premises, yet neith~r of the .parties joined as· I defendants is a commercial entity:' nor a commercial organisation . . ·.. .. .. . . . · to fall within the ambit of a commercial case. Looking at the· - status of the government,· Mr: Mundemba said it is neither a. • • !, - i \ '· commercial organisation nor ar,, business entity to which an individual person could institute·, a commercial case as proposed ,: by the plaintiff's advocates. Re~arding the 3rd defendant, Mr. Mundemba wondered upon. whfch basis the plaintiff ·sued both the Principal and the Agent alleging a tort of trespass. iI j ,, Miss Seleh on the other hahd said that the plaintiff's is cas~ not strictly. speaking, . a commerdial.case butit ' . .. is a tortions liability . claim because the gist ·of the case lies upon vacant possession. I ' ,I. 'I '· .· I looking at the :definition·. of business in• Oxford Dictionary . and in the Encydopedia of forms a_nd precedents 1996, 5 th Edition, Miss seleh said it is work of buying or selling in a continuation period of time. ,, ,: ,._.• ; ( . • . : I • . ' •. . . . . . She concluded by saying that even if the matter falls under ·., rule 2(2) (a) (iii) of GN 141/99 the plaintiff's case is a mixture

of 1 comme_rcial and tort while the; jurisdiction oft.his court is limit~d to pure commercial matter. · ' I • I . ' .~ .- . :i- . 1, ' ... ). Both Miss Seleh for the 1st ., and 2nd Defendants and Mr. Mundemba for the 3rd Defendant Concluded that this court does . · not have jurisdiction and the suit should be struck out, with costs. I h·ave carefully gone through . the plaintiff's . pleadings and the submissions made . . by all the Advocates .. The plaintiffs . submission are overstretched and cover matter~ which are not ' . pleaded at all. These are submissions such as . . . 11 The_· ownership of tr,e plaintiff herein emanates from the fact that he purchased the same from the Government that is the first defendant. ... The cause of action· herein is the ' ' breach of a contract of sal,e between the plaintiff and the first defendant whereby the first plaintiff purchased the said house from the Government,, ... 11 With greatest respect to the. Advocates for the plaintiff, the · submission quoted .above is not supported by the plaintiff's • ' I ' • • ' pleadings. None of the paragraphs in the plaint aver on how the. ownership of the suit premises was acquired. It is not pleaded anywhere that the ownership W1as acquired through a contract of_ sale between the plaintiff and the first defendant. ·Neither is it pleaded. by the piaintiff that the 1st and 2nd defendant breached· the

contract of sale. Parties ·are· bound by their pleadings. Reference is made to the case of Vidyrthi v Ra:m Rakha [19571 EA 527. . . . . . Since the plaintiff has not. pleaded about contract of sale· between himself and the 1st and- 2nd defendant, as wen as breach I • -1 . ,.~. ·_ ••• 1 •• I : 5 • ,•• .{ ' I . I i • of that contract, that portion , 0f the submission cannot be . I ' I considered by this .court It. is struck .. I·. out. ~ I I ! < ••• . i . . .·. .· . i .· . ·. . . 1- Looking atthe _plaint.as it 1s;,.1 ·totally agreeiwith-_Miss Seleh ,. . . ' - ' - . ! • • . I . • ·. that it is purely tortuous_ liabilitv claim. It is a suit for trespass,_ ' • '1 1 I 1 I • ' ·• vacant . possession and. damages . ·which I .· does not show . . that . it arose from a commercial transaction.·. . . . All advocates agree.that - . th~kommercial Division of the High. ' ' . I. court has jurisdiction to litig~te on matters · of "commercial . . . . I .· significance" as given by GN 141 of 1999. ·.. .t . i' . . r. Since matters founded on· ~art per se are not commercial in · nature, this court does not hav~ jurisdiction. td .... I . . entertain .. · . . . . .· them. .. · The plaintiffs suit has been filed ih a wrong division. It is struck out. . . rl •· • . .;,. with costs. j i .• i 1: !1· - N.P:K!MARO, . .! . • f I •. \ JU)DGE · . ' I · 23/12/2003 ·.••· ,-.-~ .. •-···--.·· ... _ . ··I ! I, •• ,/'. tl · t ·ti . I Ccrtiiy 1a u:: an·1 Correct• · . ·. . ., · en• .~u1, .n~ .if t,1..: or,! na,,.).v ,.. . · . . .• •• ••• ... •............_. :-:_• 'J,0 ........_...... : .. ' ... '• . ':i ·, Oatcll ---------,-!.:.! I • I . - ·1,,.l •.•